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PJ@Groklaw agrees

Quoting:...in the TurboHercules story, who is suing whom? It's not IBM, folks. The complaint against IBM was filed with the EU Commission by TurboHercules. At that exact moment, did they not take themselves out from under the patent pledge's safety umbrella?

Quoting:The complaint against IBM was filed with the EU Commission by TurboHercules. At that exact moment, did they not take themselves out from under the patent pledge's safety umbrella?

TurboHercules is not suing IBM if all they have done is file a complaint with the EU Commission. They are telling a government body that IBM is breaking the law. IBM is using the patents to shut them up. From the pledge itself:

Quoting:the commitment not to assert any of these 500 U.S. patents
and all counterparts of these patents issued in other countries is irrevocable except that IBM
reserves the right to terminate this patent pledge and commitment only with regard to any party
who files a lawsuit asserting patents or other intellectual property rights against Open Source
Software.

How filing a complaint with the EU Commission falls under "asserting patents or other intellectual property rights against Open Source Software" is somewhat unclear to me.

I could make neither heads nor tails of PJ's article. Maybe I'm tired and tomorrow it will all become clear. It seems that PJ does not like Florian Mueller a lot. She seems to want it both ways with IBM's patent pledge-- yes, they made that pledge, and it applies to all OSI-approved licenses, but by gosh a lot of those licenses are bunk and should be un-approved. And anyway none of those patents are pertinent to TurboHercules. And there are dark hints of the hand of Sauron being involved, because TurboHercules has an office in Redmond. Yeah, so do a few thousand other businesses. Her whole article, unless I missed it, fails to explain what this case is about, and why she is so over-the-top against TurboHercules.

This quote is good for some giggles:

Quoting:
"IBM has no intention of asserting its patent portfolio against the Linux kernel, unless of course we are forced to defend ourselves," said Nick Donofrio, senior vice president for technology and manufacturing, drawing applause in a speech at the LinuxWorld Conference and Expo.

In the hallowed halls of justice and lawyer-lands, that is called "A loophole you can drive a convoy of trucks through." And again, what does it have to do with TurboHercules?

Quoting:
I think IBM’s pulling out the big guns because the mainframe hardware group there is afraid that its monopoly position would be harmed by the ability of users at the low end to license its software to run on Hercules. That’s all TurboHercules SAS asked for, and it’s what they complained about to the EU.

The problem for me is that IBM’s chosen method of attack must necessarily implicate not just TurboHercules SAS but the open source project as well. TurboHercules SAS’s product is services and support for the Hercules open source product; there is no separate commercial version, so a claim that TurboHercules violates IBM’s patents is a claim that the open source project does so.. I have no assets IBM can take in a lawsuit, but they can easily destroy me financially should they choose to pursue their patent allegations against Hercules simply by causing me to have to defend myself.

...IBM gets a free pass from many because of its history of being a good guy to the open source world. I understand that, but to me the important lesson is that they only like open source as long as they don’t have to compete with it."

Tom Lehmann, co-founder of TurboHercules, says:

Quoting:
TurboHercules asked IBM to consider allowing customers to license IBM mainframe operating systems such as z/OS for use on the Hercules emulator...this was an attack on the Hercules open source project since TurboHercules does not develop its own software. Furthermore, IBM expressed concerns about unauthorized use of proprietary IBM information by one or more TurboHercules [i.e. Hercules] contributors. What’s that all about? Is it doubting the power of the open source development model that smart people couldn’t possibly create such an elegant mainframe emulator from IBM’s own published information?

Is that the best IBM can do, act like SCO and claim that FOSS developers are too stupid to write high-end software so they have to steal code?

Am I mistaken or did the co-founder of TurboHercules say that what they wanted to do was provide a software emulation of IBM main-frame hardware and then go and use IBM's proprietary software on said emulation?

Well, I don't see any particular reason for me to stand up and say IBM is wrong in saying no, we don't want to let you use our software that way. Perhaps TurboHercules could just go and write their own software and there wouldn't be an issue.

IBM (apparently) isn't going after them over the emulation software. They are warning them about wanting to use IBM proprietary software to make profit for themselves.

Also, a complaint to the EU regarding possible monopoly status is definitely a step towards court action. Therefore, the promise is at risk of being invalidated by TurboHercules. IBM has not sued about the patents, only provided notice that if a suit takes place they will be used as provided by the promise.

> Am I mistaken or did the co-founder of TurboHercules say that what they wanted to do was provide a software emulation of IBM main-frame hardware and then go and use IBM's proprietary software on said emulation?

Isn't that normally the point of an emulator?

From what I've been able to determine in the various articles I've read, TurboHercules is trying to provide the service of offering the emulator as an emergency backup solution to mainframe users. If their mainframe goes down for any reason, they can run their software on the emulator instead. They think this is allowed by IBM's license. IBM apparently doesn't agree.

> IBM has not sued about the patents, only provided notice that if a suit takes place they will be used as provided by the promise.

> Also, a complaint to the EU regarding possible monopoly status is definitely a step towards court action. Therefore, the promise is at risk of being invalidated by TurboHercules.

How? I quoted directly from the promise the conditions under which the pledge would fail to hold:

Quoting:IBM reserves the right to terminate this patent pledge and commitment only with regard to any party who files a lawsuit asserting patents or other intellectual property rights against Open Source Software.

Someone please point out how the EU complaint is in any way related to asserting patents or other intellectual property rights against Open Source Software. A much more plausible explanation is that whoever sent the letter was not thinking about "the promise". And threatening a lawsuit is a violation of their pledge.

Have they actually threatened a lawsuit at this point? I don't think I've seen the original letter in any of the links I've followed, but it sounds to me like a standard "We have concerns..." type letter. Now we all know that such a letter gives the implicit threat of legal action, but that's not quite the same thing.

To emulate the hardware is definitely the point of an emulator. To expect to be able to use someone else's proprietary software is not. Unless they agree of course.

I guess my concern with this whole thing is I worry that many people are jumping to defend someone against IBM who may be twisting what has actually happened to their own purposes.

Maybe everything TurboHercules says is truly factual in every way. Since I don't know all the in's and out's of what has been going on between these two companies, I don't want to start rabidly biting the hand of a company (IBM) that has been pretty beneficial to FOSS for quite some time.

> it sounds to me like a standard "We have concerns..." type letter. Now we all know that such a letter gives the implicit threat of legal action, but that's not quite the same thing.

If there were room for an alternative interpretation, I would tend to agree with you. I see no such alternative to it being a threat to sue over those specific patents. If the promise applied to TurboHercules, it's hard to see the purpose of listing them, as IBM has given full permission to use them.

> I don't want to start rabidly biting the hand of a company (IBM) that has been pretty beneficial to FOSS for quite some time.

Neither do I. What disturbs me is that I'm seeing too much of this "IBM is a good company, so what if they broke their promise" or "TurboHercules filed a lawsuit, invalidating the promise."

>Someone please point out how the EU complaint is in any way related to asserting patents or other intellectual property rights against Open Source Software.

Well, how about this?

TurboHercules has filed a legal complaint (did you know that any lawsuit begins with a complaint?) that may or may not be sufficiently in the nature of a lawsuit to activate the self-defense clause. I'm not sufficiently versed in EU political procedure to know the answer, but I know that it might and that IBM's got some sharp lawyers who know the answer a whole lot better than I do. As to asserting intellectual property rights, ahem, kiddies -- the complaint is about tying, but that is also an exercise of intellectual property rights and that is what TurboHercules is attacking.

More to the point, why does it need to be?

IBM asserts that TurboHercules infringes 106 of its patents, only 2 of which appear on the list. Had the sued solely on the basis of those 2 patents, I might be more offended, but, once you've crossed the bar, standard legal procedure is to open up all the guns.

> To expect to be able to use someone else's proprietary software is not. Unless they agree of course.

The expectation is to be able to use the software in any way you want within the limits imposed by the license.

Now, it's my understanding that the IBM license ties their software to the mainframe hardware, so you're correct that they can't run it on the emulator. The question TurboHerucles is asking is whether this is legal or not. I think they're also arguing that IBM's license allows you to run IBM"s software on the emulator as an emergency backup when your mainframe is down.

jdixon, that 'emergency backup' is a loophole that Turbohercules is trying to exploit. What the IBM cheerleaders are not saying is that TH asked IBM for a license, but IBM refused, and that's when a formerly cordial, active relationship went south. Naturally, because IBM has no competition in the mainframe market, and doesn't want any. With the usual results, extreme lockin and way overpriced products. I'm puzzled why supposed FOSS advocates think they should support monopoly and lockin.

> As to asserting intellectual property rights, ahem, kiddies -- the complaint is about tying, but that is also an exercise of intellectual property rights and that is what TurboHercules is attacking.

Dino, from the pledge, as I quoted above: "a lawsuit asserting patents or other intellectual property rights against Open Source Software". I don't see how their lawsuit would have anything to do with open source software.

> Had the sued solely on the basis of those 2 patents, I might be more offended, but, once you've crossed the bar, standard legal procedure is to open up all the guns.

It might be standard legal procedure, but that doesn't mean it doesn't violate the promise.

If PJ is going to assert that TurboHercules is wrong, she will have to provide some evidence. I've quoted multiple times the conditions for the pledge to not apply. Not one person supporting IBM has explained it, yet they've been more than happy to dismiss any concerns about IBM's behavior.

My understanding is that it doesn't just begin with a complaint but that a lawsuit is in fact merely a complaint before a court of law. A hearing of grievances and a seeking of redress. Is that incorrect or is it a valid understanding?

The question then becomes whether the body TurboHercules is addressing qualifies as a court of law or not.

Exactly and precisely.
And I don't know if it does or not -- and that qualification would rely on a lot of legal precedents and understandings that I also don't know. It gets especially tricky when crossing national borders.

Quoting:
"IBM is a good company, so what if they broke their promise" or "TurboHercules filed a lawsuit, invalidating the promise."

Talk about apples, oranges, and misdirection.

The second is nothing like the first.

WRT to breaking the promise -

If IBM breaks their promise -- and the facts make clear that they haven't -- nothing about being a good company can excuse them. They would be legally vulnerable to somebody who acted in reliance on that promise and should be roundly criticized.

WRT to actions by TurboHercules --

That is a matter of interpretation and time, but equally unequivocal: If TurboHercules has taken or does take an action which triggers the the self-defense clause, IBM is fully within its rights to sue.

And -- Don't forget that list was 106 patents long, only 2 of which were on the list of 500. If IBM does file suit, they can skirt the whole issue by suing on the basis of 104 patents.

Bigg, the promise is not to sue over the listed patents. That's not a promise not to use the patents to defend yourself if you're sued. If what TurboHercules has done is in fact the equivalent of a lawsuit, them IBM can use the patents to defend themselves and not violate the promise.

I simply don't know enough at this point to make a valid judgment call either way. But let's not let that stop me from performing some armchair analysis. :)

First, TurboHercules' emergency backup interpretation seems dubious at best. How long an outage could be covered by such an interpretation? 24 hours? 72 hours? A week? A month? 6 months? Suppose I just shut my mainframe down and don't turn it back on. It's a planned outage. Can I run the software on the emulator indefinitely? You can see why IBM might have concerns with that interpretation.

Their raising the antitrust issue before the EU seems more reasonable. It's fairly well established that a monopoly can't tie their software to their hardware after the sale. That's what the whole IE thing has been about.

From IBM's perspective, they don't think the backup interpretation is correct, and they view the complaint before the EU as a legal attack. That said, I don't see any reason IBM had to use their patent arsenal in this way, and their casual way of doing so is worrying. You would think they would take the rather obvious appearance of ignoring their promise more seriously.

I think both of you are trying to claim that I'm saying IBM has broken the promise. I'm not. This thread has to do with PJ's dismissal of concerns about IBM, and I'm saying show me the beef. Show me how we know that is true - we don't have the letter, we really don't have any of the necessary facts.

> The second is nothing like the first.

Sure it is. Both are being used to defend IBM's actions.

It is my position that we don't know whether IBM has broken the promise. As I said elsewhere, a plausible explanation is that the guy or gal who wrote the letter for IBM wasn't thinking about the promise.

PJ is too quick to dismiss concerns, but I she's is reacting to jumping-the-gun claims that IBM has violated its pledge. People do need to understand thate IBM can, under some circumstances, assert its patent rights.

2. The distinction between the two is that the first has no validity in any case. If IBM violates its pledge, it is acting in an unsavory and illegal way.

> I think both of you are trying to claim that I'm saying IBM has broken the promise.

Not exactly, but point taken. What I said could be taken that way.

To clarify, I never intended to say you were claiming that, only that any such claims might be incorrect.

We still don't know anywhere near enough to be certain of the rights and wrongs here. Has anyone seen the original IBM letter to TurboHercules or a link thereof? I don't think I have, but I won't have time to look for it until I get home tonight.

> So who here would still be against IBM if they nixed the 2 patents under the agreement and sued TH for the 104 patents they broke?

Define against IBM. :) As noted in the other thread, I'm an IBM stockholder. I'm also an FOSS user.

IBM would be within their rights in that case. I wouldn't like it any better than I like any other software patent claim. Software patents need to be take out behind the barn and shot.

Except for IBM willingness to so quickly claim software patent violations, these are normal business negotiating tactics are no real concern to FOSS. As I said earlier, that willingness is do so (and the fact that the two patents were included in the letter) is troubling.

Why don't we bring Apple and OSX into this discussion? After all they do the same bundling and also refuse to let others use their OS on any computer except their own.

And Apple has ALREADY take people to court over this. Sometimes I don't think having a monopoly on something because everyone else dropped out of the market should make what a company does any worse than what a company without a monopoly does.

You could I suppose even argue that Apple has a monopoly on Apple computers.

Windows isn't exactly locked to a particular hardware system the way both IBM mainframe and Apple computers are. Therefore I feel the Microsoft monopoly is actually the far more dangerous entity. Both IBM and Apple only monopolize their own hardware/software configuration.

Why doesn't TurboHercules just write their own software and OS to go along with their emulator. They have the right to do that. Then they can try to complete fairly for mainframe sales.

Instead they feel someone else (IBM) should be forced to supply a competitor with that software so they can be competed against. I wouldn't be in any hurry to do this if it was my business model rather than IBM's.

In a way, most manufacturers have a monopoly on their own products. The question is what that monopoly means in terms of the market.

For example, is the market a market for Apple computers or a market for computers, of which Apple is one part?

The Psystar case is not closed. Apple was awarded summary judgment (the facts in the pleadings were sufficient to decide the case), but Psystar has appealed the ruling. Tune in later, but it's not looking good for the former clone maker.

So, putting together your responses to Sander and myself, we should come up with IBM is only monopolizing their own mainframe systems and rather than build an emulator for that TurboHercules should just build their own mainframe and try to compete that way. Which makes sense to me.

Just like Dell is competing with Apple. Rather than expecting IBM to supply them to be the competition.

I have no particular association with, nor real love of IBM, but then TurboHercules doesn't endear me to themselves either.

So it seems the best solution would be for TurboHercules to create an open work alike to the Mainframe OS, that will run on anything, kind of like Linux is to Unix, then they can use the emulator to help port existing systems over.

Quoting:So it seems the best solution would be for TurboHercules to create an open work alike to the Mainframe OS

You should read the Groklaw article again. Your solution doesn't work at all. IBM Mainframe apps are license-locked to IBM OS and hardware. It's not quite like Apple as other posters make it out to be. It would be more like iTunes only being allowed to run on MacOSX (which is only allowed to run on Apple hardware). That would be more like it.

> It would be more like iTunes only being allowed to run on MacOSX (which is only allowed to run on Apple hardware).

I think a better example is the iPhone. My understanding is that Apple now only allows apps in the App Store that were developed using Apple's tools. That guarantees that you can only run those apps on the iPhone.

If that is true about the iPhone apps, then you're mostly right. I don't think that Apple (yet) forbids to run software developed using the iPhone SDK on anything but iPhones. It may be practically hard to create software with the SDK and run it on other platforms, but not legally forbidden. Yet...

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